Monday, December 27, 2010

McKee is currently a lobbyist working for the U.S. Chamber of Commerce’s division dedicated to deregulating complex derivatives products. In her new role working for Lucas, McKee will be liaising with regulators in charge of implementing new rules under the Dodd-Frank Wall Street reform law to overhaul the over-the-counter derivatives market.

As ThinkProgress reported, the Chamber, which is funded by AIG, JP Morgan, CitiGroup, and other financial interests, took the lead role in fighting to defeat Wall Street reform efforts. Last year, the Chamber organized a conference call with other financial industry lobby groups and bank lobbyists to coordinate their efforts. As Tim Fernholz reported, McKee made clear that she was fighting to “kill” financial reform:

“We want to make sure that we hold all the Republicans and are able to influence enough Democrats to have a working majority to kill this thing outright or modify it to the point where it’s palatable to the business community,” Jason Matthews, the Chamber’s director of congressional affairs, told the callers. Ryan McKee, a senior director at the Chamber’s Center for Capital Markets, was even more direct in response to a question from an caller: “We’re fundamentally trying to kill this,” she said.

This news brought to mind this post discussing Thomas Franks' book The Wrecking Crew and it's chapter about the revolving door:

Frank argues that in addition to big business-worship, a qualification for traversing this revolving door was the ability to injure, if not destroy, the institution in which the recruit was placed. Federal agencies were the main target, and some combination of the recruit's hostility to government institutions and/or the recruit's incompetence, either of which would weaken government to businesses' benefit (the theory says), was desired.

I stood on one side of that door for that era's final five years and worked with some of its travelers. As such, I was decently-positioned to observe some of the phenomena set forth in the book.

[...]

The firm was, in addition, well-known for its prestigious practice defending and advancing business interests in the courts and agencies of government. Throw in a PR group that relished opportunities to trumpet high-profile departures and returns (and was so generally adept it once got a national legal rag to portray a cadre of forty-something-year-old authoritarian dweebs as rebellious "Young Guns") and the firm was fertile ground for the furnishing of the sons (and once or twice, daughters) of The Wrecking Crew into high legal places.

Those recruited fell roughly into three groups:

The Good: One fellow left as an associate to work in the front office of the Department of Justice's ("DOJ's") Natural Resources Division, and returned a partner a few years later. A legal genius, great advocate, and fine human being, he simply was not one to bend rules or wrongly shade arguments for our business clients during our work together, regardless of the fact that he was a dyed-in-the-wool conservative. I have little knowledge of the substance of his service, yet ethics tend to travel well.

It hurts a bit to write of another relative youngster who left to become an Assistant Solicitor General. While, hands down, the most affected person I have ever encountered, his arguments before the Supreme Court were impressive, as was his record. A worthy public servant.

The Bad: Another young associate left to work for the Provisional Authority in Iraq, set up following "Mission Accomplished." There are obvious elements of sacrifice worth acknowledging, but his job, helping write Iraq's new Constitution, condemns the selection. Setting aside that era's outlandish and doomed arrogance, signified by the shipment of a gaggle of young Federalists to an ancient Muslim country to write for it its own Constitution, it does not besmirch this fellow much to say he wasn't a James Madison, and could only be sent to be one by an administration blinded by ideology and check-box credentials.

A junior partner left for a senior position in the DOJ's Antitrust Division. This surprised many as this fellow wasn't particularly known as an antitruster. He later jumped from DOJ to become General Counsel at a major federal agency. These appointments and the performance of these entities support Frank's theories: the DOJ's Antitrust Section, outside of criminal price fixing, was notoriously lax in the Bush years, virtually ignoring the Sherman Act's prohibition on monopolization and the Clayton Act's merger provisions. The other federal agency, like many in the Bush years, was criticized for failure to enforce existing law and abide by its legislative mandates.

The Ugly: After Jack Goldsmith left as head of DOJ's Office of Legal Counsel ("OLC") because he refused to sign off on the shoddy legal analysis of his predecessor, a firm partner was tapped to take his place (and presumably give his imprimatur to the now-condemned analysis). OLC is a small elite group within DOJ that generally advises the Executive on the constitutionality of proposed legislative and executive acts. OLC attained infamy during the Bush II era for its work on warrantless eavesdropping and "enhanced interrogation methods." "Just a guy," it was said of this fellow, at the time of the appointment, he played a part in some of the historically venerated Justice Department's darkest days.

A number of other firm folks passed through the revolving door during that time, particularly in less senior positions in the OLC. One appeared to fit Frank's portrayal of the flunky-conservative's ultimate government actor: the ideological incompetent. Indeed, as the controversy over the DOJ's torture memos blew up, and some condemning their legal analysis suggested the work was so deficient it must have been deliberately so, I remember thinking "not so fast."

In the main, then, Frank's analysis is spot on, even if occasionally it sweeps in too much. As his analysis is more historical and political, it is worth supplying the legal basis for condemning a mode of government that elevates ideology above all else, including law. Those laws enacted by Congress and, to a lesser extent, rules promulgated by agencies, constitute, in theory, the will of the people, and democracy in action. They are worthy of enforcement, and indeed, demand enforcement, by the executive branch. That is not to say the legislative and regulatory regimes are perfect. They are not close. But there are legitimate ways to challenge and change them.

When a collection of individuals works instead to subvert our system of representative government, our nation ceases to be one of laws, and becomes one of men instead.

For some reason that sounds almost quaint. Aren't we really just talking about which men at this point?